Justice Stevens, Habeas Jurisdiction, and the War on Terror

The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Examining these clashes is well worthwhile because of the importance of the legal issues, but also because of the light they may shed on the different analytic approaches of these two influential Justices. This paper gives particular attention to a seemingly arcane and technical battle over the retroactivity of jurisdiction-stripping statutes. Not unusually, where Justice Scalia saw a bright-line rule, which he accused the Court of wantonly trammeling, Justice Stevens instead saw a more pragmatic standard. A close examination of precedent supports Justice Stevens's view and rebuts Justice Scalia's accusation of lawlessness. Rather, it was Justice Stevens's majority opinion that was the more faithful to the rule of law.

From Roads to Rinks: Government Spending on Infrastructure in Canada, 1961 to 2005

The overall growth of government-owned infrastructure has been very similar across most regions over the past 44 years. With the exception of the Atlantic Provinces, the range of average annual capital growth from one region to the next has been very narrow, falling between 1.8% and 2.2% since 1961, according to a new study released in September 2007 in the Canadian Economic Observer. Since 2000, governments have increased their infrastructure capital more than at any time since the 1960s and 1970s. However, the growth has not been strong enough to prevent more and more signs of wear in our infrastructure (the data are net of depreciation and in constant 1997 dollars). This is due to cuts in the 1990s when governments were grappling with significant budgetary deficits, as well as many of the assets built in the post-war infrastructure boom reaching the end of their life span. This study analyses, from 1961 to 2005, government investment in infrastructure by different levels of government and type of asset by region.

Targeted Killing in U.S. Counterterrorism Strategy and Law

Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink. Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense. This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law. As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define "direct participation in hostilities," have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.The draft policy paper runs 20,000 words and is a Working Paper of the Series on Counterterrorism and American Statutory Law, a project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution, none of whom are responsible for the contents of individual papers. A finalized version of the paper will appear in Benjamin Wittes, Legislating the War on Terror: An Agenda for Reform (Brookings Institution Press 2009).

DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing

The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable. Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rulings in fact had significantly less effect on state than on federal sentencing. This is not to say, as we note in Part III, that the Court entirely ignored the states; two recalcitrant states were pointedly reminded of the Blakely/Booker rule, and the Court in its most recent sentencing decision, Oregon v. Ice, (heard in the October 2008 Term) granted state trial judges even more discretion through the practice of imposing concurrent or consecutive sentences for multiple offenses. As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts. Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach. Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup. When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably. We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences. Note: This is the not always respectful designation of the Attorney General, other political appointees, and trial attorneys working on Pennsylvania Ave. and other downtown D.C. locations, as distinguished from the 94 U.S. Attorney's Offices located throughout the United States.

Grievance, Commodity Prices and Rainfall: A Village-level Analysis of Rebel Recruitment in Burundi

Grievance and reduced opportunity costs are two popular ideas within the civil war literature to explain participation in violent rebellion. We test both hypotheses at the village-level using data on recruitment activities during the civil war in Burundi. We use historical data on violent attacks in 1972 and 1988 as a proxy for grievance. The cross-sectional analyses report no effect of grievance on the likelihood of recruitment. By contrast, they do show tentative support for the idea that reduced opportunity costs may promote recruitment. Villages that had above mean incidents of insufficient rain were more likely to have recruitment activities than others. We find similar results when we use recall information on recruitment to construct a 13-year panel. Negative income shocks through adverse weather conditions are a strong predictor of recruitment. By contrast we find no effect of commodity price shocks. These findings are consistent with a recent conclusion from literature: commodity price shocks show no robust relationship with civil war violence while weather shocks do.

The Impact of Armed Civil Conflict on Household Welfare and Policy Responses

The Judiciary in the United States: A Search for Fairness, Independence, and Competence

Alexander Hamilton referred to the judiciary as “the least dangerous branch” because it could neither make nor enforce the law without help from the other two branches of government. In the years since then, however, courts and judges in the United States have assumed a much more prominent role in society. American judges preside over criminal trials and sentence those convicted, decide all kinds of civil disputes, both large and small, and make important decisions involving families, such as child custody. They have also become the primary guarantors of the civil and constitutional rights of American citizens.The case of Marbury v. Madison established the principal of judicial review, which gave courts the power to declare acts of the other branches of government unconstitutional. Then, the passage of the Fourteenth Amendment after the Civil War made many of the protections of the Bill of Rights (which was originally directed only at the federal government) applicable to the states. As a consequence, judges are in the position to protect those liberty interests provided by the Constitution from incursions by the state or federal governments. Judges also play a large role in enforcing the numerous modern civil rights statutes providing for equality in employment, housing, public accommodations, and other areas. Protecting the constitutional and civil rights of minorities, of criminal defendants, and of other unpopular groups and causes requires not only wisdom and courage, but also the ability to make difficult and unpopular decisions without fear of being removed from office.The cornerstones of any legal system, and the greatest measure of whether it can provide justice to its citizens, are its judges. The preamble to the American Bar Association (“ABA”) Model Code of Judicial Conduct states: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us.” Fairness generally means that the judges must be unbiased and impartial; independence is the ability to decide cases free from political or other outside pressure; and competence requires that judges be of the highest ability, with proper training and experience. While there may not always be agreement as to the extent that the American judiciary meets these standards, most commentators agree with these aspirational goals. The most important factors that affect the fairness, independence, and competency of judges are: method of selection, term of office, compensation, code of conduct, the disciplinary process, gender and racial bias, and education and training. This Article will explore these factors and examine their effect on the quality of both the federal and state judiciary. A useful starting point should be those provisions in the United States Constitution that were designed to help make federal judges unbiased and independent.

The 1990's Financial Crises in Nordic Countries

The current financial crisis, which has lasted almost one and a half years, is the 19th such crisis in the post-war period in advanced economies. Recent literature classifies the Nordic crises in Norway, Sweden and Finland in late 1980's and early 1990’s among the Big Five crises that have happened before the current crisis, which is now of a global nature. This paper outlines the developments of the Nordic crises, reasons behind them and crisis management by the authorities. Relatively more emphasis is placed on the Finnish crisis, as it was the deepest one. The paper concludes by considering the lessons that can be drawn from the Nordic crises.

Empirical Legal Studies Before 1940: A Bibliographic Essay

The modern empirical legal studies movement has well-known antecedents in the law and society and law and economics traditions of the latter half of the 20th century. Less well known is the body of empirical research on legal phenomena from the period prior to World War II. This paper is an extensive bibliographic essay that surveys the English language empirical legal research from approximately 1940 and earlier. The essay is arranged around the themes in the research: criminal justice, civil justice (general studies of civil litigation, auto accident litigation and compensation, divorce, small claims, jurisdiction and procedure, civil juries), debt and bankruptcy, banking, appellate courts, legal needs, legal profession (including legal education), and judicial staffing and selection. Accompanying the essay is an extensive bibliography of research articles, books, and reports.

Soldiers or Bureaucrats? Conflict and the Military's Role in Policy-Making

One of the most striking institutional features of many less developed countries is that their militaries are closely involved in policy-making, potentially having a large impact on economic outcomes. This paper examines the role of the military in setting policy. For this purpose it develops one of the first models of the military, where its political involvement can take two forms: direct when the military runs the government, and indirect when it influences policy without governing directly. We focus on civilian regimes and find that war decreases the payoff to the military from both forms of involvement, but also makes staging successful coups easier. In equilibrium, an increase in the likelihood of war makes indirect involvement less likely; its impact on coups, which are aimed at establishing direct control, is non-monotonic. We show empirical evidence for this non-monotonic relationship, with coups being least likely for low and high probabilities of war.